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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`___________________
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`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
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`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2018-00391
`Patent 7,647,633
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`__________________________________________________________
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`PATENT OWNER’S MOTION TO SEAL CERTAIN EXHIBITS UNDER 37
`C.F.R. §§ 42.14 AND 42.54
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner Finjan, Inc.,
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`(“Finjan”) hereby moves to seal portions of certain exhibits (collectively referred
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`to herein as the “Subject Exhibit”) to Finjan’s Opposition to Motion to Exclude
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`which are identified below:
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`Filing/Exhibit Content
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`Section
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`Exhibit 2036
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`
`Supplemental
`Declaration of Phil
`Hartstein in Support of
`Patent Owner’s
`Response
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`¶¶ 11, 12, 13
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`¶ 15
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`Confidential
`Information1
`Contains highly
`confidential
`information regarding
`licensing practices
`Contains highly
`confidential
`information regarding
`licensing practices
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`I.
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`GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
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`The Board’s standards for granting motions to seal are discussed in Garmin
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`International v. Cuozzo Speed Techs., LLC, IPR2012-00001 (Paper 34 at 4-
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`5)(P.T.A.B. Mar. 14, 2013) and Corning Optical Commc’ns RF, LLC v. PPC
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`Broadband, Inc., Case IPR2014-00440 (Papers 46, 47, 49) (P.T.A.B. Apr. 6, 14,
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`1 Further details regarding the confidential information regarding each of the
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`exhibits identified in this chart are explained infra at § I. A copy of the proposed
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`Default Protective Order previously had been filed as Exhibit 2026 as part of
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`Patent Owner’s Motion for Entry of Protective Order. See Paper No. 13.
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`1
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`and 17, 2015). The standard for granting a motion to seal is “good cause.” 37
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`C.F.R. § 42.54(a). The moving party bears the burden of showing that the relief
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`requested should be granted. 37 C.F.R. § 42.20(c). In particular:
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`The rules aim to strike a balance between the public’s interest in
`maintaining a complete and understandable file history and the
`parties’ interest in protecting truly sensitive information.
`*
`*
`*
`Confidential Information: The rules identify confidential information
`in a manner consistent with Federal Rule of Civil Procedure
`26(c)(1)(G), which provides for protective orders for trade secret or
`other confidential research, development, or commercial information.
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`Office Trial and Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012); 35
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`U.S.C. § 316(a)(7); 37 C.F.R. § 42.54.
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`The Subject Exhibit contain confidential information requiring that they be
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`designated as “PROTECTIVE ORDER MATERIAL” under Default Protective
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`Order (see Exhibit 2026). The Subject Exhibit contains highly confidential
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`information of Finjan and third parties. Specifically, it discusses and reveals
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`confidential information regarding Finjan’s and/or third party’s licensing practices
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`including highly sensitive information relating to such licenses. The confidential
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`information disclosed in the Subject Exhibit is outlined in the chart above.
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`The sealing of the foregoing is of particular importance because the public
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`disclosure of such “truly sensitive information” would impact Finjan’s and third
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`2
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`party’s competitive position in the market. In particular, information regarding
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`certain licenses, and the development efforts and strategies at Finjan, would allow
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`competitors to access information that would significantly harm Finjan’s
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`competitive position in the marketplace.
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`Furthermore, and notwithstanding the foregoing, granting this Motion would
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`not prejudice nor impact this underlying proceeding. The public’s interest in
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`accessing the information requiring that the limited identified portions of the
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`Subject Exhibit be sealed for the purposes of the patentability of the challenged
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`claims is unquestionably outweighed by the prejudicial effect and competitive
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`harm of disclosing the above described confidential business information of third
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`party.
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`II. CERTIFICATION OF NON-PUBLICATION
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`To the best of Finjan’s knowledge, the confidential information contained in
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`the Subject Exhibit has not been made publically available.
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`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
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`Finjan previously met and conferred with Petitioner regarding the scope of
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`the Default Protective Order. Petitioner did not object to the entry of the Default
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`Protective Order.
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`3
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`IV. PROPOSED PROTECTIVE ORDER
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`Finjan proposes that the Default Protective Order found in Appendix B of
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`the Trial Practice Guide be entered. A copy of the Default Protective Order was
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`previously filed as Exhibit 2026. Petitioner did not object to the entry of the
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`Default Protective Order. See Paper No. 13.
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`V. CONCLUSION AND RELIEF REQUESTED
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`Accordingly, good cause exists to warrant entry of the Default Protective
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`Order and to seal the Subject Exhibit from public disclosure.
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`Dated: February 13, 2019
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`(Case No. IPR2018-00391)
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`Respectfully submitted,
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`
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`
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`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 212.715.8000
`
`Jeffrey H. Price (Reg. No. 69,141)
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.7502 Fax: 212.715.8302
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`
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`Attorneys for Patent Owner
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`4
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`CERTIFICATE OF SERVICE
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`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
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`service was made on the Petitioner as detailed below.
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`Date of service February 13, 2019
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`Manner of service Electronic Mail (PDMcPherson@duanemorris.com;
`PCMuldoon@duanemorris.com;
`japowers@duanemorris.com)
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`Documents served PATENT OWNER’S MOTION TO SEAL CERTAIN
`EXHIBITS
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`
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`Persons Served Patrick D. McPherson
`Patrick Muldoon
`Joseph A. Powers
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`/James Hannah/
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`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
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